[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31195]


[[Page Unknown]]

[Federal Register: December 20, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC01

 

Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for the Cherokee Darter and Endangered Status for the 
Etowah Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines threatened 
status for the Cherokee darter (Etheostoma (Ulocentra) sp.) and 
endangered status for the Etowah darter (Etheostoma etowahae) under the 
Endangered Species Act of 1973 (Act), as amended. The Cherokee darter 
and Etowah darter are recently discovered species of fish that are 
endemic to the Etowah River system in north Georgia.
    The Cherokee darter is now known from approximately 20 small 
tributary systems of the Etowah River, but healthy populations are 
known from only a few sites. The Etowah darter is known from the upper 
Etowah River mainstem and two tributary systems. Impoundments and 
deteriorating water and benthic habitat quality resulting from 
siltation, agricultural runoff, other pollutants, poor land use 
practices, increased urbanization, and waste discharges have resulted 
in the restriction and fragmentation of these species' current ranges. 
These factors continue to impact the species and their habitat.

EFFECTIVE DATE: January 19, 1995.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, 6620 Southpoint Drive South, Suite 310, 
Jacksonville, Florida 32216.

FOR FURTHER INFORMATION CONTACT: Mr. Robert S. Butler at the above 
address (904/232-2580).

SUPPLEMENTARY INFORMATION:

Background

    The Etowah River is one of three major upper Coosa River system 
tributaries, the others being the Conasauga and Oostanaula Rivers. The 
Etowah joins the Oostanaula River in Rome, Georgia, to form the Coosa 
River. The Coosa River itself is the major eastern tributary of the 
Mobile Basin and empties into the Gulf of Mexico in southwest Alabama. 
The Etowah River system drains portions of the Blue Ridge, Piedmont, 
and Valley and Ridge physiographic provinces. All streams in the 
drainage are upland in nature and characterized by high gradients and 
rocky substrates. Land use patterns of the Etowah system are largely of 
a rural agrarian economy, with scattered municipalities, including the 
encroaching Atlanta metropolitan area.
    The diversity of the aquatic fauna is commensurate with the 
diversity of physiographic provinces comprising the basin. Many of the 
aquatic organisms reported from the Etowah system are rare. Records of 
federally protected species are known for an endangered fish (amber 
darter, Percina antesella), four endangered mussels (upland combshell, 
Epioblasma metastriata; southern clubshell, Pleurobema decisum; ovate 
clubshell, P. perovatum; and triangular kidneyshell, Ptychobranchus 
greeni), and a threatened mussel (Alabama moccasinshell, Medionidus 
acutissimus). In addition, several Category 2 candidate species from 
the Service's animal notice of review published in the Federal Register 
of November 21, 1991 (56 FR 58804) are also known from the Etowah River 
system. These include a mussel (Tennessee heelsplitter, Lasmigona 
holstonia), five fishes (rock darter, Etheostoma rupestre; freckled 
darter, Percina lenticula; bronze darter, P. palmaris; lined chub, 
Hybopsis lineapunctata; and frecklebelly madtom, Noturus munitus), and 
at least three aquatic snails (spindle elimia, Elimia capillaris; 
coldwater elimia, E. gerhardti; and rough hornsnail, Pleurocera 
foremani). It is estimated that 35 of the potentially 50 freshwater 
mussel species that once inhabited the Etowah River system have been 
extirpated (Burkhead et al. 1992); several of these species are now 
considered extinct. The Etowah River system at one time contained a 
significant portion of the aquatic biodiversity of the upper Mobile 
Basin.

Cherokee Darter

    A small percid fish, the Cherokee darter is subcylindrical in 
shape, and has a relatively blunt snout with a subterminal mouth. The 
body shade is white to pale yellow. The side of adults is pigmented 
with usually eight small dark olive black blotches that develop into 
vertically elongate, slightly oblique bars in breeding adults, 
especially in males. The back usually has eight small dark saddles and 
intervening pale areas. The Cherokee darter has proven to be distinct 
from the Coosa darter, E. coosae, a species with which it was 
previously confused, by peak nuptial males never having five discrete 
color bands in the spinous dorsal fin.
    Cherokee darters inhabit small to medium size warm-water creeks of 
moderate gradient, with predominately rocky bottoms. It is usually 
found in shallow water in sections of reduced current, typically in 
runs above and below riffles and at the ecotones of riffles and 
backwaters. The Cherokee darter is associated with large gravel, 
cobble, and small boulder substrates, and is uncommonly or rarely found 
over bedrock, fine gravel, or sand. It is most abundant in stream 
sections with relatively clear water and clean substrates (little silt 
deposition). The Cherokee darter is intolerant of heavy to moderate 
silt deposition. The Cherokee darter, like other members of the 
subgenus Ulocentra, is intolerant of impoundment.
    The Cherokee darter is endemic to the Etowah River system in north 
Georgia, where it is primarily restricted to streams draining the 
Piedmont physiographic province, and to a lesser extent, the Blue Ridge 
physiographic province. The Cherokee darter occurs in about 20 small to 
moderately large tributary systems of the middle and upper Etowah River 
system. However, only a few sites contain healthy populations of this 
species. The largest populations occur in northern tributaries upstream 
of Allatoona Reservoir. Populations are smaller in tributaries draining 
the southern portion of the system. The southern tributary systems tend 
to drain areas exhibiting less relief and are on the average much more 
degraded. Cherokee darter populations are found primarily above 
Allatoona Reservoir. Downstream of Allatoona Dam, populations are 
restricted to two tributary systems.
    The Cherokee darter exhibits a disjunct and discontinuous 
distribution pattern indicating fragmentation and isolation of 
populations. The placement of Allatoona Reservoir in the middle Etowah 
River system has caused much of the fragmentation of this species' 
populations. One major tributary system in the upper Etowah system, 
Amicalola Creek, apparently naturally lacks populations of Cherokee 
darters, but contains a relatively close relative and also a narrow 
endemic, the holiday darter, E. brevirostrum. The Cherokee darter is 
allopatric (i.e., the ranges of the species do not overlap) with the 
other two Ulocentra species in the watershed, the holiday darter and 
Coosa darter. A formal description of the Cherokee darter is awaiting 
publication (Bauer et al. in press).

Etowah Darter

    The Etowah darter is a small-sized percid fish that is moderately 
compressed laterally, and has a moderately pointed snout with a 
terminal, obliquely angled mouth. The body ground shade is brown or 
grayish-olive. The side is usually pigmented with 13 or 14 small dark 
blotches just below the lateral line. The breast in nuptial males is 
dark greenish-blue. The Etowah darter has proven distinct from the 
greenbreast darter, E. jordani, a species with which it has previously 
been confused, by the absence of red marks on the sides and anal fins 
of male specimens.
    The Etowah darter inhabits warm and cool, medium and large creeks 
or small rivers that are moderate or high gradient with rocky bottoms. 
It is found in relatively shallow riffles, with large gravel, cobble, 
and small boulder substrates. The Etowah darter is typically associated 
with the swiftest portions of shallow riffles, but occasionally adults 
are taken at the tails of riffles. The sites having the greatest 
abundance of Etowah darters had clear water and relatively little silt 
in the riffles. The Etowah darter, like other members of the subgenus 
Nothonotus, shuns pool habitats and is intolerant of impoundment.
    The Etowah darter is endemic to the upper Etowah River system in 
north Georgia, where it is restricted to the upper Etowah River 
mainstem and two tributaries, Long Swamp and Amicalola Creeks. These 
streams drain both the Blue Ridge and Piedmont physiographic provinces. 
This distribution suggests habitat specialization; all streams 
inhabited by this species are geographically adjacent in the most 
upland portion of the river system. For a fish of moderate to large 
creeks or small rivers, the Etowah darter has one of the most 
restricted distributions in the southeast (Lee et al. 1980). The Etowah 
darter has been formally described by Wood and Mayden (1993).
    The Cherokee darter appeared as a category 2 species in the 
Service's notice of review for animal candidates published in the 
Federal Register of January 6, 1989 (54 FR 554) and November 21, 1991 
(56 FR 58804). Category 2 species are taxa under review for listing, 
but for which conclusive data on biological vulnerability and threat(s) 
are not currently available to support proposed rules.
    The Service commenced funding a status survey in 1989 to better 
determine the status of the recently discovered Cherokee darter. After 
field work had commenced, another undescribed fish was discovered in 
the Etowah River system, the Etowah darter. The survey was modified to 
address the population status of both these undescribed darters. A 
final report was received on March 30, 1993 (Burkhead 1993), providing 
sufficient information on biological vulnerability and threats to 
support a proposed rule to classify the Cherokee darter as threatened 
and the Etowah darter as endangered.
    On April 6, 1993, the Service notified potentially affected Federal 
and State agencies by mail that a status review was being conducted for 
the Cherokee darter and Etowah darter. Two comments were received 
concerning this notification. The U.S. Forest Service stated that it 
was unlikely Forest Service lands harbored suitable habitat for the two 
darter species. They also noted that future Forest Service activities 
in the Etowah River watershed were expected to decrease, and that it 
was unlikely these activities would produce any noticeable siltation 
effects on downstream populations of the Cherokee darter and Etowah 
darter. The Environmental Protection Agency commented on locating 
specific watersheds having high cumulative non-point source stream 
impacts for potential restoration work. This information would be 
useful in the recovery of the Cherokee darter and Etowah darter. 
Neither agency had objections to the potential listing of these 
species.

Summary of Comments and Recommendations

    In the October 18, 1993, proposed rule (58 FR 53696), and through 
associated notifications, all interested parties were requested to 
submit factual reports and information that might contribute to the 
development of a final rule for the Cherokee darter and Etowah darter. 
Appropriate Federal and State agencies, county governments, scientific 
organizations, and interested parties were contacted by letter dated 
November 1, 1993, and were requested to comment. Legal notices were 
published in The Atlanta Journal/The Atlanta Constitution, Atlanta, 
Georgia, on October 31, 1993, and in The Marietta Daily Journal, 
Marietta, Georgia, on November 5, 1993.
    In response to a formal request by the Cherokee County Board of 
Commissioners, a public hearing on the Service's proposal to list the 
Cherokee darter and the Etowah darter as threatened and endangered, 
respectively, was held on January 12, 1994, at the Cherokee County 
Administrative Building, Canton, Georgia. The comment period was 
extended until January 24, 1994. A notice of the hearing and comment 
period extension was published in the Federal Register on December 16, 
1993 (58 FR 65696) and in the Cherokee Citizen, Canton, Georgia, on 
December 29, 1993.
    Seven written and 17 oral comments (fourteen at the public hearing) 
were received regarding the proposed listing. Federal agencies 
providing written comments included two agencies in the U.S. Department 
of Agriculture, Animal Damage Control and Soil Conservation Service, 
and the U.S. Army Corps of Engineers (Corps). The Animal Damage 
Control, Coosa River Basin Initiative, and Georgia Environmental 
Organization supported the listing; most of the other commenters did 
not. Following is a summary of the comments, concerns, and questions 
(referred to as ``Issues'' for the purpose of this summary) expressed 
in writing and orally. Issues of similar content have been grouped 
together. These issues and the Service's response to each are presented 
below.
    Issue 1: Several commenters questioned the validity of both the 
Cherokee darter and Etowah darter as taxonomically distinct species.
    Response: These two fishes were recently recognized as species new 
to science by prominent ichthyologists highly knowledgeable of fish in 
southeastern United States streams. A few years prior to the status 
survey for these species in the Etowah River system (see response to 
Issue 5 below), the Cherokee darter had been considered the Coosa 
darter (Etheostoma coosae) and the Etowah darter had been considered 
the greenbreast darter (E. jordani). Status survey collections in the 
Etowah River system provided material sufficient for ichthyologists to 
determine that the Cherokee darter and Etowah darter were indeed valid 
biological entities distinct from the species they had heretofore been 
confused with. Specifically, unique color differences in nuptial 
(breeding) males of both species were discovered. Publication of a 
species description in scientific journal and peer review by the 
scientific community is the primary safeguard to ensure that species 
descriptions are based on sound scientific information. Therefore, the 
Service accepts the biological basis of species validity provided in 
the forthcoming scientific description and distinction of the Cherokee 
darter from the Coosa darter (Bauer et al. in press), and the published 
scientific description and distinction of the Etowah darter from the 
greenbreast darter (Wood and Mayden, 1993).
    Issue 2: One commenter wanted clarification as to the timing of the 
determination of the Cherokee darter as a valid species in relation to 
the impoundment of Allatoona Reservoir, and insinuated that since the 
Cherokee darter was not formally recognized as a species at the time of 
reservoir construction, the preimpoundment records for populations of 
the Cherokee darter alluded to in the proposed rule referred actually 
to the Coosa darter.
    Response: As stated in the response to Issue 1 above, these two 
species were recognized as new species within the past few years, and 
decades after Allatoona Reservoir was completed in the 1950's. However, 
the Service is not indicating that these two fishes evolved into 
separate species since construction of this reservoir. The evolution of 
new species is a slow process that takes thousands or millions of 
years. There is no scientific basis to suggest the Cherokee darter or 
the Etowah darter evolved since the construction of Allatoona 
Reservoir, or that this reservoir played any part in the evolution of 
these species. Therefore, the preimpoundment records of Cherokee 
darters stated in the proposed rule pertain to that species, and do not 
refer to populations of the Coosa darter.
    Issue 3: Some commenters thought that since the Cherokee County 
Water and Sewerage Authority (County) had taken the habitat 
requirements of the federally threatened amber darter (Percina 
antesella) into consideration in the design of the proposed dam 
impounding the Yellow Creek Reservoir, that the habitat requirements of 
the Cherokee darter or Etowah darter could also be considered having 
been addressed.
    Response: There are over 150 recognized species of darters in 4 
genera and approximately two dozen subgenera. Darters occupy a wide 
variety of habitats in rivers, lakes, and swamps from the Appalachian 
Mountains to near sea level throughout much of eastern North America. 
The Etowah River system alone harbors at least 11 species of darters. 
Each species inhabits discreet portions of the drainage and specific 
habitats within its streams. The habitat requirements of the Cherokee 
darter differ significantly from those of the amber darter. However, 
the habitat requirements of the amber darter are similar, but not 
identical, to that of the Etowah darter. The habitat requirements of 
the Cherokee darter have therefore not been taken into consideration 
during the design of the proposed dam.
    Issue 4: Numerous commenters questioned the timing of the proposed 
rule to provide protection for the Cherokee darter and Etowah darter in 
relation to the proposed Yellow Creek Reservoir project, and one 
commenter made the same assertion concerning a proposed regional 
connector highway (Atlanta beltway).
    Response: The Service is required by the Act to protect any species 
that is in danger of extinction. This determination is based upon the 
best available biological information. When the Service first learned 
of the occurrence of the undescribed Cherokee darter, a narrowly 
distributed and potentially imperilled fish in the Etowah River system, 
a survey was funded to determine its status. That survey was initiated 
during the fall of 1989. The following summer, the Etowah darter was 
determined to be a distinct and highly localized species, and the 
survey continued for both darters until 1992. When information was 
obtained on the population status and distribution of the Cherokee 
darter and Etowah darter sufficient to support federal listing of these 
species, a rule was proposed to afford them protection under the Act. 
The timing of the proposed rule to list these two fishes was therefore 
coincidental with any proposed construction projects.
    Issue 5: Several commenters questioned the extent of the status 
survey for the Cherokee darter and Etowah darter and the possibility 
that other area streams may harbor populations of these species.
    Response: From the fall of 1989 to summer 1992, a survey of the 
Etowah River system was funded by the Service to determine the 
population status and total distribution of the Cherokee darter and 
Etowah darter (see response to Issue 4 above). A total of 146 
collections at 141 sites throughout the Etowah River system were made 
for these two fish. Although sites outside the Etowah River system were 
not surveyed for the Cherokee darter and Etowah darter, the Service 
believes that the fish faunas in surrounding drainages are adequately 
known to assure that these two darters are not present. The discovery 
of additional populations of one or both species within the Etowah 
River system is possible. However, based on the extensive status survey 
conducted for the Cherokee darter and Etowah darter, the Service 
believes no further surveys are warranted before listing these species.
    Issue 6: Numerous commenters were concerned with the potential 
economic impact that this listing proposal might have on completion of 
the proposed Yellow Creek Reservoir project, and one commenter had the 
same concerns regarding the proposed Atlanta beltway.
    Response: The Service is required by the Act to use the best 
available biological information in the assessment of determining 
whether Federal protection under the Act is warranted for a species. 
The economic impacts resulting from endangered species protection are 
not to be considered when proposing to list a species under the Act.
    Section 7 of the Act requires Federal agencies to ensure that their 
actions are not likely to jeopardize the continued existence of any 
listed species (see the ``Available Conservation Measures'' section of 
this rule and the response to Issue 7 below). The Corps has consulted 
with the Service regarding the potential effects this federally 
permitted reservoir project might have on the amber darter, which 
occurs in the Etowah River mainstem both upstream and downstream of the 
Yellow Creek confluence. The County conducted a study addressing issues 
pertaining to the amber darter and its habitat and has made 
modifications to the dam that should minimize any impacts upon this 
federally endangered fish. The Service is currently in conference with 
the Corps regarding the dam's potential impacts upon the Cherokee 
darter and Etowah darter. As mentioned elsewhere (see response to Issue 
3 above), the habitat requirements of the Etowah darter are similar to 
that of the amber darter. The design changes of the proposed dam that 
addressed the amber darter may possibly also protect the Etowah darter 
and its habitat. However, the Cherokee darter, which has a population 
in Yellow Creek very near the dam site, has different environmental 
requirements. The County has proven that it was willing to work with 
the Corps and the Service in addressing issues related to the amber 
darter. The Service commends these efforts by the County, and is 
confident that a similar agreement can be reached for Cherokee darter 
issues. The Service's Brunswick, Georgia, Field Office is currently 
working with the Corps and County to resolve specific issues relating 
to the Cherokee darter. Additionally, for the proposed Atlanta beltway 
project, the Federal Highway Administration must consult with the 
Service's Brunswick Field Office regarding potential impacts to the 
Cherokee darter and Etowah darter during the planning and construction 
phases.
    Issue 7: One commenter requested the Service prepare a ``takings 
analysis'' under Executive Order 12630 that assesses the impacts of the 
listing of the Cherokee darter and the Etowah darter on private 
property rights.
    Response: The Attorney General has issued guidelines to the 
Department of the Interior (Department) on the implementation of 
Executive Order 12630: Governmental Actions and Interference with 
Constitutionally Protected Property Rights. Under these guidelines, a 
special rule applies when an agency within the Department is required 
by law to act solely upon specified criteria that leave the agency no 
discretion. In enacting the Act, Congress required the Department to 
list species based solely upon scientific and commercial data 
indicating whether they are in danger of extinction. The Service is 
prohibited by law from withholding a listing based on concerns 
regarding economic impact and is required to act, with appropriate 
public notice, under strict time tables. Any failure to comply may 
subject the agency to legal action. Accordingly, the provisions of the 
Attorney General's guidelines relating to nondiscretionary actions 
clearly are applicable to the determination of threatened status for 
the Cherokee darter and endangered status for the Etowah darter, and 
Taking Implication Assessments under Executive Order 12630 cannot be 
considered in making this administrative decision. Since the Act 
precludes consideration of economic factors during the listing process, 
the Service's policy is to not consider taking implications at this 
time.
    Issue 8: Several commenters were concerned with potential impacts 
the listing of the Cherokee darter and the Etowah darter might have on 
normal agricultural activities and those of other private property 
owners in the watershed.
    Response: Based on the results of listing other aquatic organisms 
in north Georgia streams, the Service does not believe there will be 
any major impact to these activities as a result of listing these two 
fishes. Concerning the use of agricultural chemicals, the Service 
consults with the Environmental Protection Agency to determine if 
pesticides they register are likely to jeopardize the continued 
existence of listed species. When the use of a particular chemical is 
likely to jeopardize a listed species, the use of that chemical is 
restricted. Thus, it is possible that the use of a pesticide could be 
restricted to avoid jeopardizing either of these darters. Any other new 
restrictions that might be placed on farmers or other local landowners 
would be due to activities involving Federal agencies, which must 
review their actions and determine, under Section 7 of the Act, if such 
actions would adversely affect these species (see the ``Available 
Conservation Measures'' section of this rule and the response to Issue 
6 above). The Service stresses to landowners the importance of 
maintaining development-free streamside buffer zones to protect stream 
habitat and water quality upon which the Cherokee darter and Etowah 
darter depend. Maintaining such buffers should avoid many potential 
impacts to these two fishes.
    Issue 9: One commenter stated that reservoirs act as sediment 
traps, and suggested that dams may actually improve habitat conditions 
in downstream areas.
    Response: The Service concurs that dams may act as traps of 
alluvial sediments that are conducted down stream beds and overbank 
areas during flood conditions. However, conditions below Allatoona 
Reservoir, despite an obvious reduction in the bed load and other 
transported sediments, have deteriorated since reservoir construction 
several decades ago. Riverine habitat has been altered due primarily to 
the disruption of the normal flow and temperature regime in the lower 
Etowah River below Allatoona Dam. Dams should not be perceived as 
beneficial sediment traps; rather efforts should be made on a 
watershed-wide basis to abate sources of silt and other sediments 
resulting from poor landuse practices from entering streams in the 
first place.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that the Cherokee darter and 
Etowah darter should be classified as threatened and endangered, 
respectively. Procedures found at Section 4(a)(1) of the Act (16 U.S.C. 
1531 et seq.) and regulations (50 CFR part 424) promulgated to 
implement the listing provisions of the Act were followed. A species 
may be determined to be an endangered or threatened species due to one 
or more of the five factors described in Section 4(a)(1). These factors 
and their application to the Cherokee darter (Etheostoma (Ulocentra) 
sp.) and the Etowah darter (Etheostoma etowahae) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The Cherokee darter and Etowah 
darter are both endemic to the Etowah River system in north Georgia 
(Burkhead 1993). These species have been rendered vulnerable to 
extinction by significant loss of habitat within their restricted range 
in the Etowah River system. The primary causes of habitat loss in the 
Etowah River system result from impoundments, siltation, point source 
and nonpoint source pollution which includes, but is not limited to, 
municipal and industrial waste discharges, agricultural runoff from 
crop monoculture and poultry farms, poultry processing plants, and 
silvicultural activities. Much non-agricultural and non-silvicultural 
habitat degradation in the watershed can be attributed to increased 
urbanization in the Atlanta metropolitan area. All such forms of 
habitat degradation and pollution disrupt the aquatic ecosystem, 
particularly impacting benthic (bottom) habitat. Certain pollutants may 
be particularly harmful in cumulative concentrations or if synergistic 
interactions with other pollutants or chemicals occur.
    Impoundments have destroyed a significant portion of the free-
flowing stream habitat in which the Cherokee darter lives, and to a 
lesser extent they have impacted the Etowah darter as well. Based on 
museum records, at least five preimpoundment populations of the 
Cherokee darter were extirpated by the inundation of the 4,800 hectare 
(11,856 acre) Allatoona Reservoir, which was completed in 1955. 
Undoubtedly other, undocumented, Cherokee darter populations were 
destroyed by the filling of Allatoona Reservoir. The lower portions of 
some of the tributary systems that harbor populations of the Cherokee 
darter are inundated by Allatoona Reservoir, isolating these 
populations from other populations in adjacent tributaries. These 
tributaries include Butler, Shoal, and Stamp Creeks.
    Besides Allatoona Reservoir, numerous small impoundments and ponds 
are scattered throughout the range of the Cherokee darter and Etowah 
darter. Impoundments directly destroy stream habitat by converting 
free-flowing streams to man-made lakes and ponds and by causing 
population isolation. Furthermore, small impoundments are numerous 
enough in the Etowah system to have a negative effect on both these 
species by causing population fragmentation and isolation, thereby 
blocking genetic interchange. Impoundments also alter the thermal 
regimen of the stream sections immediately below the dam and can cause 
community shifts favoring centrarchid fishes (Brim 1991), potential 
predators on both Cherokee darters and Etowah darters. The Yellow Creek 
population of the Cherokee darter is directly threatened by a proposed 
water supply impoundment planned by the Cherokee County government. 
During low flow periods, 30 percent of the flow in the Etowah River 
above a known Etowah darter site will be comprised of water from Yellow 
Creek reservoir. Although the effects of this flow augmentation in the 
Etowah River are not known, the change in water quality and temperature 
could potentially have a negative impact on the Etowah darter.
    Erosion from poor land use practices causes extensive topsoil 
erosion and subsequent siltation of stream bottoms. Sources of 
siltation include timber clearcutting, clearing of riparian vegetation, 
and those construction, mining, and agricultural practices that allow 
exposed earth to enter streams. Light to moderate levels of siltation 
are ubiquitous in many streams of the Etowah River system which have 
populations of the Cherokee darter and Etowah darter. Siltation 
problems are severe in many tributaries that have or probably had 
populations of the Cherokee darter, including Allatoona Creek, the 
Little River system, Settingdown Creek, Pumpkinvine Creek, and portions 
of Shoal Creek (Cherokee County), Sharp Mountain Creek, Long Swamp 
Creek, and Raccoon Creek. Siltation and dust from marble quarries in 
Pickens County are also major problems in Long Swamp Creek, the only 
known site where the Cherokee darter and Etowah darter are found 
together. A rock quarry has been proposed for Stamp Creek in Bartow 
County. If permitted, this quarry may have an adverse effect on the 
Stamp Creek Cherokee darter population.
    The extreme isolation or absence of populations of the Cherokee 
darter in Settingdown, Allatoona, and Raccoon Creeks and the Little 
River also strongly suggests localized extirpation of populations. 
These intermediate streams probably once supported populations of the 
fish. Much of the Little River system is heavily affected by large silt 
and bed loads; the remaining fish fauna is depauperate and at many 
sites dominated by species tolerant of degraded habitats.
    The Cherokee darter and Etowah darter are obligate benthic species 
living, foraging, and spawning on the stream bottom. Hence, their well-
being is directly tied to benthic habitat quality. Negative effects of 
silt on benthic fishes were summarized by Burkhead and Jenkins (1991). 
Silt reduces or destroys habitat heterogeneity and primary 
productivity, increases fish egg and larval mortality, abrades 
organisms, and alters, degrades, and entombs macrobenthic communities. 
The geological strata drained by the Etowah River, particularly in the 
middle and upper portion of the system, contain micaceous schist. The 
erosion of this substrata adds an extremely abrasive mica component to 
the silt which must render this silt even more noxious to benthic 
organisms. Current State and Federal regulations preventing silt from 
entering streams are lacking, inadequate, or not rigorously enforced.
    The current rate of development in the counties surrounding Atlanta 
is very high. The most rapid development appears to be in Gwinnett, 
Cobb and Fulton Counties, but it is also high in Cherokee County, which 
is in the heart of the Cherokee darter's current range. The effects of 
creeping urbanization may be seen as far away as Dawson County, where 
the majority of Etowah darter populations, as well as some Cherokee 
darter populations, are known. One of the principal concerns to the 
continued existence of the Cherokee darter and Etowah darter is the 
trend of converting farmland into localized subdivisions in areas 
relatively remote from Atlanta. Associated with increased development 
and land clearing is increased siltation from erosion, accelerated 
runoff, and transport of pollutants into the Etowah River system.
    The tributaries harboring the Cherokee darter and Etowah darter are 
crossed by numerous road and railroad bridges. These stream crossings 
are potential sites for accidents which could spill toxic material into 
streams. Spills of toxic chemicals at such crossings could cause 
catastrophic fish kills and local extirpation of these species. The 
high number of bridge crossings over Cherokee darter and Etowah darter 
streams increases the probability that such an accident will occur in 
the future.
    Attending the urbanization associated with the growth of the 
Atlanta metropolitan area is a proposed bypass that would 
circumnavigate Atlanta to the northwest, connecting Interstate 75 with 
Georgia State Route 371. The bypass would cross several Cherokee darter 
streams in portions of Forsyth, Cherokee, and Bartow Counties. It will 
also traverse the Etowah River at the lower portion of the Etowah 
darter's range. Bridge construction sites, some located in the upper 
Etowah River watershed, would be potential sources of sedimentation to 
Cherokee and Etowah darter habitat. In addition, since this roadway is 
not being planned as a limited access highway, the project will foster 
development not just at major road intersections, as occurs with 
interstate highways, but along the entire corridor.
    It has been reported that 75 percent of Georgia's landfills will 
reach capacity in five years (The Atlanta Journal/The Atlanta 
Constitution, February 23, 1992). Several landfill sites have been 
proposed within the range of the Cherokee darter; one such site occurs 
between two Cherokee darter streams: Riggins and Edward Creeks, 
Cherokee County. On the banks of the upper Etowah River, within the 
known limited range of the Etowah darter, the Sanitfill Pine Bluff 
landfill is being constructed. Refuse may ultimately be received from 
as far away as New York. When this facility reaches its full potential, 
it will purportedly be the largest landfill in the eastern United 
States. While modern landfills are purportedly designed to contain 
runoff, it seems doubtful that such landfills would actually retain 
barrier integrity for decades to come.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. In general, small species of fish, such as the 
Cherokee darter and Etowah darter, which are not utilized for either 
sport or bait purposes, are unknown to the general public. Therefore, 
take of these species by the general public has not been a problem. 
Publication of this rule will inform the general public as to the 
presence of these two darters in the Etowah River system. Considering 
the restricted distribution and small populations of the Etowah and 
Cherokee darters, it would be easy for vandals or unscrupulous 
collectors to eliminate or seriously impact populations in specific 
stream reaches if their exact location were known. The distribution of 
these species has therefore been described only in general terms for 
the purposes of this rule. Federal protection will serve to minimize 
adverse population impacts from illegal take, but the Act's penalties 
are not likely to act as a complete deterrent to such actions.
    C. Disease or predation. Predation upon the Cherokee darter and 
Etowah darter undoubtedly occurs. However, there is no evidence to 
suggest that predation threatens these species, except possibly in 
altered stream reaches immediately below dams.
    D. The inadequacy of existing regulatory mechanisms. The Official 
Code of Georgia Annotated 27-2-12 prohibits the taking of these fish 
without a state collecting permit. Federal listing provides protection 
under Section 9 of the Act by requiring Federal permits for taking the 
Cherokee darter and Etowah darter. Additional protection is gained 
under Section 7 of the Act by requiring Federal agencies to consult 
with the Service when projects they fund, authorize, or conduct may 
affect these species.
    E. Other natural or manmade factors affecting its continued 
existence. The range of the Cherokee darter has been fragmented, and a 
significant portion of the middle Etowah River system has been 
permanently altered by Allatoona Reservoir. The streams inhabited by 
the Cherokee darter and Etowah darter exhibit, on average, moderate to 
heavy degradation from poor land use practices and small impoundments. 
These strong negative forces have caused local extirpation of both 
Cherokee darter and Etowah darter populations and have induced range 
fragmentation and subsequent isolation of the Cherokee darter into 
small populations. Genetic diversity has subsequently been lost due to 
these population losses. The genetic diversity of all populations may 
be needed to provide the species enough genetic variability to adapt to 
environmental change and thus assure long-term viability. The 
restricted distribution of both the Cherokee darter and Etowah darter 
also makes populations vulnerable to extirpation from catastrophic 
events, such as an accidental toxic chemical spill. Range fragmentation 
and loss of genetic diversity, independently and in concert, clearly 
threaten the continued existence of these species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by both darters in determining to make this rule 
final. Based on this evaluation, the preferred action is to list the 
Cherokee darter and Etowah darter as threatened and endangered species, 
respectively. The Cherokee darter is now known from approximately 20 
tributary systems of the Etowah River, but healthy populations are 
known from just a few sites. The Etowah darter is known from only the 
upper Etowah River mainstem and two tributary systems. Both species are 
restricted to the Etowah River system in north Georgia. These fish and 
their benthic habitat have been, and continue to be, impacted by range 
reduction, isolation by impoundment, and general habitat destruction. 
Despite its wider distribution and greater number of known populations, 
the Cherokee darter appears to have more of its habitat threatened by 
these factors, which have already resulted in a higher level of 
population fragmentation and isolation relative to the Etowah darter. 
The restricted distribution of these two species also makes localized 
populations susceptible to catastrophic events. Because of these 
factors, endangered appears the most appropriate status for the Etowah 
darter and threatened appears most appropriate for the Cherokee darter.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary propose critical 
habitat at the time a species is determined to be endangered or 
threatened. The Service's regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations exist: (1) The species is threatened by taking or 
other activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species or (2) such 
designation of critical habitat would not be beneficial to the species. 
The Service finds that designation of critical habitat is not prudent 
for these species. Such a determination would result in no known 
benefit to these species, and designation of critical habitat could 
further threaten them.
    Section 7(a)(2) and regulations codified at 50 CFR part 402 require 
Federal agencies to ensure, in consultation with and with the 
assistance of the Service, that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of 
listed species or destroy or adversely modify their critical habitat, 
if designated. (See ``Available Conservation Measures'' section for a 
further discussion of Section 7.) As part of the development of this 
final rule, Federal and State agencies were notified of the darters' 
general distribution, and they were requested to provide data on 
proposed Federal actions that might adversely affect the two species.
    Should any future projects be proposed in areas inhabited by these 
fishes, the involved Federal agency will already have the general 
distributional data needed to determine if the species may be impacted 
by their action; and if needed more specific distributional information 
would be provided.
    Regulations promulgated for implementing Section 7, referenced 
above, provide for both a jeopardy standard, based on listing alone, 
and for a destruction or adverse modification standard, in cases where 
critical habitat has been designated. The Cherokee and Etowah darters 
occupy very restricted stream reaches. Any significant adverse 
modification or destruction of their habitat would likely jeopardize 
their continued existence. Under these conditions the two standards are 
essentially equivalent. Therefore, no additional protection for the 
species would accrue from critical habitat designation that would not 
also accrue from listing these species. Once listed, the Service 
believes that protection of their habitat can be accomplished through 
the Section 7 jeopardy standard, and through Section 9 prohibitions 
against take.
    These two fish are very rare. Therefore, taking for scientific 
purposes and private collections could pose a threat to their continued 
existence if site specific information were released to the general 
public. The publication of critical habitat maps in the Federal 
Register and local newspapers and other publicity accompanying critical 
habitat designation could increase the collection threat and also 
increase the potential for vandalism during the often controversial 
critical habitat designation process. The potential for future habitat 
disruption within one or both of these species' ranges resulting from 
the rapidly expanding Atlanta metropolitan area makes designation of 
critical habitat potentially more contentious and controversial, 
increasing the possibility for vandalism to occur. The locations of 
these species' populations have consequently been described only in 
general terms in this rule. Any existing precise locality data would be 
available to appropriate Federal, State, and local governmental 
agencies from the Service office described in the ADDRESSES section; 
from the Service's Brunswick Field Office, Federal Building, Room 334, 
801 Gloucester Street, Brunswick, Georgia 31520; and from the Georgia 
Department of Natural Resources, and Georgia Natural Heritage Program.
    For the foregoing reasons the Service believes that critical 
habitat designation is not prudent for these species, and that their 
protection can be adequately accomplished through the Section 7 
jeopardy standard and Section 9 prohibitions against take.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain practices. Recognition through listing encourages and 
results in conservation actions by Federal, State, and private 
agencies, groups, and individuals. The Endangered Species Act provides 
for possible land acquisition and cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
The protection required of Federal agencies and the prohibitions 
against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    Federal involvement is expected to include the Environmental 
Protection Agency through the Clean Water Act's provisions for 
pesticide registration and waste management actions. The Corps of 
Engineers will consider these species in project planning and 
operation, and during the permit review process. The Federal Highway 
Administration will consider impacts of federally funded bridge and 
road construction projects when known habitat may be impacted. 
Continuing urban development within the Etowah River system may involve 
the Farmers Home Administration and their loan programs. The Soil 
Conservation Service will consider the species during project planning 
and under their farmer's assistance programs. The Forest Service will 
consider downstream impacts to habitat of the Etowah darter when 
planning or implementing silvicultural, recreational, or other programs 
in the headwaters of Amicalola Creek and the extreme upper portion of 
the Etowah River mainstem occurring in the Chattahoochee National 
Forest. It has been the experience of the Service that nearly all 
Section 7 consultations can be resolved so that the species is 
protected and the project objectives are met.
    The Act and implementing regulations found at 50 CFR 17.21 for 
endangered species, and 17.21 and 17.31 for threatened species set 
forth a series of general prohibitions and exceptions that apply to all 
endangered and threatened wildlife. These prohibitions, in part, make 
it illegal for any person subject to jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
or collect; or attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken illegally. Certain exceptions 
apply to agents of the Service and State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered or threatened wildlife species under certain 
circumstances. Regulations governing permits are at 50 CFR 17.22, 
17.23, and 17.32. Such permits are available for scientific purposes, 
to enhance the propagation or survival of the species, and/or for 
incidental take in connection with otherwise lawful activities. For 
threatened species, there are also permits for zoological exhibition, 
educational purposes, or special purposes consistent with the purpose 
of the Act. In some instances, permits may be issued for a specified 
time to relieve undue economic hardship that would be suffered if such 
relief were not available. Since these species are not in trade, such 
permit requests are not expected.
    It is the policy of the Service (59 FR 34272) to identify to the 
maximum extent practicable at the time a species is listed those 
activities that would or would not constitute a violation of section 9 
of the Act. The intent of this policy is to increase public awareness 
of the effect of the listing on proposed and ongoing activities within 
a species' range. The Service is not aware of any otherwise lawful 
activities being conducted by the public that will be affected by this 
listing and result in a violation of section 9.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Jacksonville Office (see ADDRESSES section). Requests for 
copies of the regulations concerning listed animals and general 
inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Southeast Regional Office, Ecological 
Services Division, Threatened and Endangered Species, 1875 Century 
Boulevard, Atlanta, Georgia 30345-3301 (Telephone 404/679-7099, 
Facsimile 404/679-7081).

National Environmental Policy Act

    The Service has determined that an Environmental Assessment, as 
defined under the authority of the National Environmental Policy Act of 
1969, need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Endangered Species Act of 1973, as 
amended. A notice outlining the Service's reasons for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244).

References Cited

Bailey, R.M., and D.A. Etnier. 1988. Comments on the subgenera of 
darters (Percidae) with descriptions of two new species from the 
southeastern United States. Misc. Pub. Univ. Michigan Mus. Zool. 
175:1-48.
Bauer, B.H., D.A. Etnier, and N.M. Burkhead. In press. Etheostoma 
(Ulocentra) sp. (Osteichthyes: Percidae), a new darter from the 
Etowah River system in Georgia. Bull. Alabama Mus. Nat. Hist.
Brim, J. 1991. Coastal Plain fishes: floodplain utilization and the 
effects of impoundments. Unpublished masters thesis, Dept. Biol., 
Univ. South Carolina, Columbia.
Burkhead, N.M. 1993. Status survey for two freshwater fishes, the 
Cherokee and Etowah darters (Pisces, Percidae), endemic to the 
Etowah River system of north Georgia. Final report submitted to the 
U.S. Fish and Wildlife Service, Jacksonville Field Office, Florida. 
25 pp.
Burkhead, N.M., and R.E. Jenkins. 1991. Fishes. Pp. 321-409, in: K. 
Terwilliger (coordinator). Virginia's endangered species. McDonald 
and Woodward Pub. Co., Blacksburg, Virginia.
Burkhead, N.M, J.D. Williams, and B.J. Freeman. 1992. A river under 
siege. Georgia Wildlife 2(2):10-17.
Lee, D.S., C.R. Gilbert, C.H. Hocutt, R.E. Jenkins, D.E. McAllister, 
and J.R. Stauffer, Jr. 1980. Atlas of North American freshwater 
fishes. North Carolina State Mus. Nat. Hist., Raleigh.
Wood, R.M., and R.L. Mayden. 1993. Systematics of the Etheostoma 
jordani species group (Teleostei: Percidae), with descriptions of 
three new species. Bull. Alabama Mus. Nat. Hist. 16:29-44.

Author

    The primary author of this final rule is Robert S. Butler (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

    1. The authority citation for Part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under ``FISHES'', to the List of Endangered and Threatened 
Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                    Vertebrate population                                                  
----------------------------------------------------      Historic range          where endangered or      Status    When listed    Critical    Special 
       Common name              Scientific name                                       threatened                                    habitat      rules  
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Fishes                                                                                                                                        
                                                                                                                                                        
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
Darter, Cherokee.........  Etheostoma (Ulocentra)    U.S.A. (GA).............  Entire..................  T                   569           NA         NA
                            sp.                                                                                                                         
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
Darter, Etowah...........  Etheostoma etowahae.....  U.S.A. (GA).............  Entire..................  E                   569           NA         NA
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: November 23, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-31195 Filed 12-19-94; 8:45 am]
BILLING CODE 4310-55-P